The California State Supreme Court's recent decision in Marriage of Lamusga is the latest in a series of California appellate decisions that have dealt with this situation over the last fifty years. The consequences of a court's ruling in a move-away case can have a profound impact on both parents and their children. Unlike the typical child custody dispute, in which the parents fight over how much time they will each have the children, these cases have an unmistakable "all or nothing" quality to them.

The move-away parent views the move as a doorway to her post-divorce future. The stay-behind parent, on the other hand, sees the move as a threat to his/her parenthood. The children, caught in the middle of the parental battle, often feels pressured to choose between their parents. Even if such a choice is not forced upon them, the children' relationship with the non-custodial parent is often permanently altered.

If the move-away request is made in the course of the initial child custody determination, the court's decision is to be based on a determination of what arrangement is in the best interests of the child.

If the request is presented as a modification of an existing child custody order, the manner in which the request is considered depends upon the nature of the existing custodial arrangement.

If the parents are sharing physical custody of the child (i.e. at least a 60%/40% sharing) the decision is based on what is in the children's best interests.

If one parent has physical custody of the child for more than 60% of the time, that parent will be presumed to have the right to move the child without the consent of the other parent. In such cases, the non-custodial parent will be successful in preventing the move if he/she can convince the court that

The move is being made in bad faith, i.e. is motivated by the custodial parent's desire to reduce or eliminate the other parent's contact with the children, or

The move would be detrimental to the welfare of the child. In determining if the move would be detrimental to the child, the court is to consider the effect the move will have on the child's relationship with the other parent after the move.

In determining what custodial arrangement is in the children's best interests the court is to consider, among other things, the following:

The children's need for stability and continuity.

The distance of the move.

The age of the children.

The children's relationship with both parents.

The relationship between the parents, including their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests.

The wishes of the children if they are mature enough for such an inquiry to be appropriate.

The reasons for the proposed move.

The extent to which the parents currently are sharing custody.

The parent who is opposing the move-away request has the right to request a child custody evaluation by a court-appointed expert.

What is a Parent to Do? With two exceptions, the ruling of the trial judge was affirmed. This tells us that appellate courts will be very reluctant to second guess Superior Court judges who hear the trials of these cases and are in a position to weigh the evidence. Nevertheless, the Burgess and Lamusga cases tell us that there are strategies that both parents can utilize to either enhance their chances of winning a move-away case or preventing the custodial parent from prevailing.

Strategies for the Move-Away Parent

The following should be considered by the parent who would like to relocate to another metropolitan area:

Do not interfere in the relationship between the children and the other parent.

Avoid saying anything bad about the other parent to or in the presence of the children.

If the other parent is not seeing the children on a regular basis, maintain a calendar that note when that parent actually spends time with the children.

Be prepared to provide documents showing the reason for the move.

Make sure that you will have a source of income after the move is completed.

Move to a location where the moving parent has extended family.

Do not wait until the end of the children's summer vacation to file papers in court requesting the right to move with the children. File your papers at least four months prior to the scheduled move. This will provide the court with sufficient time to schedule a hearing.

If this is the initial custody determination and you anticipate that you will want to move in the future, do not permit the custody order to have any move-away restrictions.

Make sure that the custody order provides you with sole physical custody of the children.

Strategies for the Parent Objecting to the Move-Away

The parent who is objecting to the move also has strategies that, if followed, can maximize that parent's ability to resist the move.

In the initial custody order, make sure that final judgment provides that physical custody of the children is awarded jointly to both parents and that neither parent can change the residence of the children from the metropolitan area without the court's permission.

Try to get as much time with your children as possible. Be sure to exercise all of your visitation rights.

Insist that the child custody order reflect that the parents are awarded joint physical custody of the children.

If the custodial parent requests the right to move the children, insist that the court appoint a social worker or a mental health professional to conduct a thorough evaluation of the children and the parents.

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If you are planing to move out of state or the other parent wants to move and you object to the relocation,​call us immediately for a FREE 20 minute consultation (800) 887.7071